Dr. MEENA V. GOMBER, J. - (1.) BOTH the above mentioned appeals pertain to a matter arising out of FIR No. 244/1977 dated 30-10-1977 Ex. P-2 lodged at the instance of Mangal Singh S/o Nanda at Police Station Badi, Distt. Bharatpur.
(2.) THE case was registered against five persons namely Malkhey Singh and his four sons Raghuwar Dayal, Tara Singh, Ram Ratan and Shiv Singh. Out of whom only Shiv Singh and Tara Singh are alive and the other three i.e. Malkhey Singh, Raghuwar Dayal and Ram Ratan have expired during the pendency of these appeals and State appeal filed against them stood abated. After the lodging of report. Police could initially arrest only four persons namely Malkhey Singh, Raghuwar Dayal, Shiv Singh and Ram Ratan and as against them the charge-sheet was filed under Sections 302,307,147,148, & 149 IPC for which they were tried by Addl. Sessions Judge No. 2, Dholpur in Sessions Case No. 19/79 and were acquitted of all the charges by learned Trial Court vide its judgment dated 6-6-1981 on the ground of right of private defence to person and property available to them. As against said judgment, State of Rajasthan has preferred appeal No. 111/1982. So far as the fifth accused namely Tara Singh was concerned, he was shown absconding and a supplementary charge-sheet, after his arrest on 31-1-1983, was filed and the trial commenced against him on 15-2- 1983 as Sessions case No. 13/83 before learned Sessions Judge, Dholpur, who, vide his judgment dated 31-1-1985, recorded a finding of conviction under Sections 302 & 326 IPC and, sentenced him as under : (i) For offence under Section 302 IPC, sentence of imprisonment of life and a fine of Rs. 250/-, in default, to further two months' simple imprisonment; (ii) For offence under Section 326 IPC, sentence of rigorous imprisonment for five years and a fine of Rs. 200/- in default whereof further imprisonment of 1 1/2 months. Accused Tara Singh, being aggrieved of the said judgment, has also preferred his criminal appeal which was registered as 70/ 1985. Both the bove mentioned appeals pertaining to the same incident are being disposed by this common order.
(3.) BRIEF facts of the case as mentioned in Ex. P/2 are that on 30-10-1977, at about 7.30 a.m., Ram Singh deceased, the brother of complainant Mangal Singh, was ploughing the field known as 'Markhation Wala Khet' which is adjacent to accused Malkhey's field and that a dispute between him and the accused Malkhey had been going on for a long time with regard to the 'Med' between their two fields. His other two brothers Manjeeta and Phool Singh were also ploughing their fields situated nearby. The complainant, at that time, was 2 to 3 fields away from the place of occurrence and on hearing the cry, he ran towards that field and saw that Malkhey & his sons Ram Ratan, Shiv Singh, Raghuwar Dayal and Tara Singh were beating his brother Phool Singh and his other two brothers Ram Singh and Manjeeta were lying on the ground. He saw Raghuwar Dayal and Tara Singh laced with Pharsa, Shiv Singh and Malkhey with lathi and Ram Ratan with Ballam. As soon as he reached, they tried to assault him also but he ran towards Hingota village and came back with Ramji, Ramlal, & Pati. By the time, he came back, Ram Singh had succumbed to injuries and Manjeeta & Phool Singh were lying injured and unconscious. Further that, the occurrence was witnessed by Shivcharan, Mando, Sampat and Attar Singh who were ploughing their respective fields and who tried to save also but in vain. ;